In recent posts I tried to analyze the content of the new PhRMA code of ethics on interactions with physicians, and to suggest just how serious the industry might be—or not—in offering this voluntary move toward partial reform. More recent events suggest that if you wish to put a cynical spin on things, you may be our guest.

First, some background. Massachusetts is trying to implement its new plan to cover everyone in the state by a mandatory insurance rule, and to make insurance affordable, by finding more ways to cut health costs. The mammoth bill, containing numerous health care cost containment provisions, passed the Massachusetts Senate with a ban on pharmaceutical company gifts and meals to physicians; a requirement that payments for consulting and speaking be reported on a public website; and a ban on companies buying physician prescribing information.

The House, by contrast, deleted the ban on gifts and the sunshine reporting provision. Initially they left intact the ban on prescribing information, but a later amendment delayed the start of that rule for a year.

Why did the House delete these measures that had been acceptable to the Senate, and that promised to hold down drug costs (at least in theory) by limiting the companies’ ability to market the highest-priced, brand-name drugs? According to the Globe’s coverage, a critical feature of the descent of hordes of Pharma lobbyists on the Capitol was the argument that with the new code of ethics, PhRMA had promised to behave itself, and so there was no need to pass legislation. Specifically, the new version of the bill that passed the House replaced the bans with the simple requirement that drug companies adopt a “marketing code of conduct”—i.e., the PhRMA code.

Now, it just so happens that a state law would have real teeth in it, and the PhRMA code of conduct, at least according to its critics, is largely toothless—and if it is followed by the companies in a way comparable to its predecessors, it would be almost completely toothless. So it is a great sucess for industry lobbying if they can parlay the appearance of the code of conduct into the overturning or avoidance of legislative action. The Democratic state Senator who first proposed the ban on gifts in Massachusetts, Mark C. Montigny, specifically credited the industry lobbying effort with the reversal of the bans.

If you hold the cynical perspective that seems to be to be most realistic at present, we can look for renewed efforts at both the state and national levels to try to weaken any legislation that cramps the industry’s marketing style, with the new excuse that the legislation is not needed because PhRMA has seen the light and repented its sins in the form of the new marketing code. And that would seem to suggest the critical “why now” of the code in the first place.

All that is necessary for evil to triumph is for good men to do nothing
When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.
- Edmund Burke

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